Enter your email to subscribe:

Click the link at the bottom of this post to listen to this week's special Friday edition of the Thursday interiew. Earlier this week, we posted here about Prof. Jeffrey Parker'sletter to the House and Senate Judiciary Committees urging postponement of the general restyling amendments to the Federal Rules of Civil Procedure. In this week's installment of the Thursday Interview, Prof. Parker talks about why he believes Congress should prevent implementation of the amendments before their December 1 effective date.--Counseller

In a recent case (sorry, no free link available but the Westlaw citation appears below), the Southern District of New York denied a motion to remand, beginning by noting that "'Tortured' is an understated description of the procedural history of this case." Before providing us with 31 pages of jurisdictional goodness, the court described the novelty of the issue:

The
highly unusual facts of this case confront this Court with the
following question: is remand necessary or appropriate where defendants
remove an action to federal court, then seek to remand that same action
to state court at a much later stage of litigation, after plaintiffs
have added a jurisdiction-conferring federal claim and after removal is
discovered to have been improvident? Despite sophisticated searches for
similar cases, conducted by teams of lawyers for both sides and by this
Court, this case appears to be sui generis.
Indeed, no district court has been required to assess whether it could
exercise jurisdiction based on a challenge made after it permitted an
amendment to add a federal claim but later learned that the original
basis of jurisdiction was defective.
As a result, the Court cannot rely on a single controlling case or
statute; rather, it must look to general principles drawn from the case
law for guidance.

After an extensive review of the jurisdiction-curing cases from the Supreme Court and other appeals courts, the district court concluded:

In
sum, after three and a half years of intense and complex litigation,
scores of formal and informal court conferences, and many opinions, I
conclude that plaintiffs' voluntary amendment, which added an
unmistakable federal claim before the defect in removal was identified,
is sufficient to confer subject matter jurisdiction upon this Court
despite what now appears to have been an improvident removal. Any other
result would ignore the years of effort by the Court and the parties-a
critical factor specifically recognized by the Supreme Court and
several circuit courts. I turn now to the question of whether this Court has the power to
exercise supplemental jurisdiction over the state law claims and, if
so, whether it should nonetheless exercise its discretion to remand
those claims to state court.

Absent U.S. Congressional intervention, the pending amendments to the Federal Rules of Civil Procedure will take effect on December 1 of this year. Prof. Jeff Parker wants Congress to postpone the effectiveness of the amendments and, in an effort to convince it to do so, has sent the House and Senate Judiciary Committees this letter/working paper. The abstract follows.

I write to urge the Members of the House and the Senate to enact legislation postponing the effectiveness of pending amendments to the Federal Rules of Civil Procedure. Without intervening Congressional action, these amendments will take effect on December 1 of this year pursuant to 28 U.S.C. § 2074(a). I recognize that this is an extraordinary request, but this year's pending amendments also are extraordinary, as they will completely re-write each and every provision of the Civil Rules for the first time in their 70-year history. More fundamentally, they adopt a novel concept of rule interpretation – what one of the proponents calls "clarity without change" – that is antithetical to our jurisprudence and likely to produce disarray in the procedural system.

There is a substantial body of opinion, in which I join, that the proposed amendments are likely to produce a material degradation of civil justice in our federal courts by imposing enormous burdens of transitional cost, in exchange for little or no benefit. Perhaps more importantly, there is no indication that the judicial rulemaking committees have fully considered the potential consequences of these sweeping changes. For these reasons, the Congress should provide itself the opportunity to study these proposed rules – and the process and concepts that produced them – before they take effect.

Many thanks to Prof. Charles Campbell for bringing Prof. Fisher's working paper to our attention.--Counseller

The Fifth Circuit handed down Norris v. Hearst Trust last week in which the court affirmed dismissal of the plaintiffs' breach of contract and wrongful termination suit on res judicata grounds. The key issue was whether in the prior suit the state court had rendered a final judgment before the plaintiffs nonsuited their case. The facts of the case raise some very testable issues on a first-year exam. What's the effect of an oral rendition when the court simultaneously announces its intent to later memorialize the judgment. What's the date of the judgment when an otherwise final judgment is later "corrected"? --Counseller

Prof. Amy Coney Barrett's article A Theory of Procedural Common Law is available on SSRN here. The Virginia Law Review has accepted the article for publication. The abstract follows:

Debates about the common lawmaking power of the federal courts focus
exclusively on substantive common law. But federal common law is not
limited to matters of substance; it reaches matters of procedure as
well. Federal law includes a robust body of what might be called
“procedural common law” - common law primarily concerned with the
regulation of internal court processes rather than substantive rights
and obligations. This body of law includes many doctrines that are
fixtures in the law of procedure and federal courts. For example,
abstention, forum non conveniens, remittitur, stare decisis, and
preclusion can all fairly be characterized as procedural common law.
This body of law does not fit easily into the traditional account of
federal common lawmaking power, because it generally lacks certain
features thought characteristic of federal common law: It does not bind
state courts, it falls outside of the recognized enclaves of federal
common law, and it is not entirely subject to congressional abrogation.

This
Article offers a tentative account of the power of the federal courts
to make procedural common law. One explanation for this power is a
variation on the “enclave” theory advanced in the context of
substantive common law: the constitutional structure preempts the
state's ability to regulate federal-court procedure, and, if Congress
fails to specify procedural rules, federal courts must. This theory
rings partly true insofar as it recognizes that federal-court procedure
lies beyond state control. It is unsatisfying, however, insofar as it
conceives of the procedural power of the federal courts as entirely
derivative of and subservient to that of Congress. The Article thus
considers an alternate theory: that procedural common lawmaking
authority derives not from congressional default, but from Article
III's grant of judicial power. This theory has more force insofar as it
accounts for the fact that the power of the courts sometimes, even if
rarely, exceeds that of Congress in matters of procedure. It depends,
however, on the widely assumed but largely untested proposition that
federal courts possess inherent procedural authority. The Article
canvasses Founding-era history to determine whether the Constitution
can fairly be understood to confer this power, concluding that the
historical evidence, while far from overwhelming, supports the claim
that federal courts possess inherent procedural authority. Building
from this notion of inherent procedural authority, the Article then
sketches a theory to explain the power of the federal courts to make
procedural common law.

Though not right in the CivPro strike zone, the Wall Street Journal has an article in today's online edition of interest to both law students and the law profs (including CivPro profs) who care about the futures of those students. The article reports that, despite big pay increases at the largest law firms, most law students are having a difficult time finding employment that will allow them to service their enormous debt loads. According to the article, the poor job prospects for new lawyers is a result of flat demand for legal services coupled with an increased demand for legal employment. The article is not an encouraging read, but probably an important one.--Counseller

I want to apologize in advance for writing yet another entry about my abstract concerns regarding due process. However, so far this is all the Civ Pro I know and this is the only way I have learned to approach the subject. I have a few thoughts about the cases I read for this week, but they have not yet been tempered by the Socratic Method. Since I find that class is often an exercise in learning how wrong my first thoughts really are, I will put my thoughts on litigation costs off till next week.

We wrapped up a fairly lengthy introduction to due process late last week. Yet, as thoroughly the issue was presented in class, I find myself wondering exactly what the function of the due process protection really is. Class discussion and the assigned readings have left me with conflicting notions of exactly what role it plays or should play in our system. I don’t know which notion is correct, whether it matters if I know which one is correct, or even whether there is an established or "correct" way to view due process.

My question is whether due process is meant to establish accurate procedures or to ensure that an individual is given "fair" treatment in some sense of the word that is either broader or narrower than mere accuracy. In other words, I am wondering whether a system that usually gets the answer “right” is a necessary and/or sufficient condition for the existence of procedural due process.

After finally reading what I understand to be the leading case, Matthews vs. Eldridge, I was initially convinced that accuracy plays a paramount role in due process. After all, an important part of the balancing test that the Matthews court used was the reduction in the risk of erroneous deprivation caused by a change in procedure. Because the reduction in risk must be combined with the benefit gained by reducing that risk and then weighed against the cost of that reduction, I understood that the system does not pursue accuracy at all costs. Yet, putting the case in these terms suggested to me that procedural due process is-- at least to a substantial extent-- about ensuring some socially optimal level of accuracy.

However, class discussion made me wonder if my understanding was off base, if not slightly callous. We talked about how the balancing test is blown out of the water if you attach an infinite value to an individual’s interest in "fairness." Though I don't recall this notion of "fairness" being defined, I do think it was meant to signify something other than receiving a procedure that produces an accurate result. I came away from that class with the idea that even in a theoretical system that is 100 percent accurate, it would still be entirely possible for an individual to be denied due process rights by that system.

Now, I am left wondering whether the conception of due process offered in class was just a theoretical musing or wishful thinking, or whether it was drawn from some line of reasoning that the courts have accepted or are likely to accept in the future. Fundamentally, I am wondering where are all of these principles come from, and whether our system can function if even a concept as fundamental as due process is so fluid and susceptible to argument. I am beginning to suspect my professor is training us to be the very people who generate the arguments for these principles. With every case we read, we are encouraged to deconstruct the arguments and attempt to redefine the terms.

Despite the fact that trying to make plausible arguments on both sides is kind of fun, I still want to know what due process IS. I have already come to accept that there won’t' be bright-line rules for everything. However, I do long for at least some well established blocks on which to build arguments. When I mentioned this idea to my classmate, he gave me an answer that really made me think about how our system really functions. He said, "Depending on what side of a case you are on, you may well be happy that there aren't too many well established rules."

Perhaps, I will come to accept that one day. Or, perhaps, there are some things that are more established then they now seem, and my prof. is only trying to push our reason to the limits. Either way, this is the mindset I will take to the new set of cases I read; I hope it is not based on a fundamental misunderstanding. --Crash